PARTLY DISSENTING OPINION OF JUDGE BOÅ NJAK

1. Unfortunately I cannot agree with the majority that it is unnecessary to examine the applicant’s complaint under Article 8 of the Convention. In this respect, I share all the crucial arguments advanced by Judge Kūris in his separate opinion. Above all, I believe that the issue of restrictions on spousal visits is factually and legally separate from the questions of (a) adequacy of medical care in prison and of (b) irreducibility of life sentence. Furthermore, I consider it impossible to characterise the issue of such restrictions as being of “secondary legal importance” as compared with the “main legal questions” pertaining to Article 3 of the Convention. A separate examination of the applicant’s complaint regarding restrictions on spousal visits is particularly necessary in the light of the existing case-law abundantly cited in Judge Kūris’s separate opinion. The latter convincingly cites a number of cases, including recent Grand Chamber cases, where the Court, alongside issues regarding the applicants’ ill-treatment while serving their prison sentences, addressed the question of visit restrictions.

2. In this separate opinion, I wish to make reference also to the partly dissenting opinion submitted by Judge Pastor Vilanova in the case of Popov and Others v. Russia , no. 44560/11, 27 November 2018. Although the judgment in that case is not yet final, my colleague’s separate opinion convincingly argues that failure to address complaints raised by applicants under the guise of regarding them as secondary has no support in the Convention and its interpretation and may be considered as tantamount to a denial of justice. In the present case, one can reasonably assume that the applicant retains a genuine interest in the examination of his Article 8 complaint, which for him may be of fundamental importance. That is why I voted against the decision not to examine the applicant’s complaint under Article 8 of the Convention.

[1] . In this regard, see the joint partly dissenting opinion of J udges Spielmann, Sajó, Karakaş and Pinto de Albuquerque in Murray v. the Netherlands (GC), no. 10511/10, 26 April 2016.

[2] . Point no. 6 of the operative provisions of the present judgment. To the same e ffect , see p ara . 201 of the present judgment.

[3] . See the concurring opinion of J udge Ziemele in Vinter v. United Kingdom (GC), nos. 66069/09, 130/10 and 3896/10, 9 July 2013, p ara . 2: “The wording that the Court uses, in my view, mixes together the establishment of State responsibility by a court based on a violation of the State’s obligations under the Convention and the question of the Court’s view on the possible legal consequences following the finding of responsibility”.

[4] . See Vinter v. United Kingdom (GC), c ited above , §120; László Magyar v. Hungary , no. 73593/10, §51, 20 May 2014; Harakchiev and Tolumov v. Bulgaria , nos. 15018/11 and 61199/12, §246, 8 July 2014; Murray v. the Netherlands , no. 10511/10, § 99, 26 April 2016; Hutchinson v. the United Kingdom, no. 57592/08, § 45, 17 January 2017; and MatioÅ¡aitis and Others v. Lithuania , nos. 22662/13, 51059/13, 58823/13, 59692/13, 59700/13, 60115/13, 69425/13 and 72824/13, §181, 23 May 2017. 

[5] . See Murray v. the Netherlands (GC), prec., § 100.

[6] . See László Magyar , cited above ; Ha rakchiev and Tolumov , cited above .

[7] . See my opinion in Murray , cited above, §§ 13 and 16. See also my opinion in Hutchinson , cited above, § 10.

[8] . See my opinion in Murray , cited above, §§ 13 and 16.

[9] . See Hutchinson , cited above, § 42.

[10] . See my opinion in Hutchinson , cited above, pt. 38.

[11] . See the opinion of judge Sajo in Hutchinson , cited above.

[12] . In this regard, see M. Pettigrew, “Politics, power and Parole in Strasbourg: Dissociative judgment and differential treatment at the European Court of Human Rights”, 2018 4(1) International comparative j urisprudence 16-26; and L. Graham, “From Vinter to Hutchinson and Back Again? The Story of Life Imprisonment Cases at the European Court of Human Rights”, 2018 (3) European Human Rights Law Review 258-277.

[13] . Matiošaitis and Others , cited above, § 181.